Expert Witness Immunity - Supreme Court Experts?
The consequences of the decidedly disturbing decision-making
in Jones -v- Kaney should put a number of issues right at the
top of an expert witness's to-do list
The decision of the Supreme Court in Jones
-v- Kaney  UKSC 13 was split, with a majority of five judges
favouring the removal of expert witness immunity to civil suit from those who
instruct them and two judges dissenting.
For many expert witnesses, the decision
will make little immediate difference. Most expert witnesses, being
conscientious professionals, will feel themselves unlikely to be found
negligent and will carry professional indemnity insurance just in case. Indeed,
they will view existing professional disciplinary risks as a greater concern!
But there are a number of potential consequences of this disturbing decision that
should be considered by all expert witnesses and some clear actions that may be
The majority in the Supreme Court is
dismissive of the risk that their decision will have a ‘chilling effect’ on the
supply of willing experts. But opening expert witnesses to the potential
distractions of vexatious suits from disgruntled litigants is never likely to encourage
involvement in forensic work. It is the unquantifiable nature of this risk that
so concerned Lord Hope and Lady Hale, as it should trouble anyone interested in
the proper administration of justice.
A chill wind
For all the effort put into drawing an
analogy between expert witnesses and advocates, the majority in the Supreme
Court completely ignored the fundamental difference between these two players.
Experts have busy professional lives away from the legal system and can readily
choose not to take on forensic work, but advocates have no such easy
Accepting the analogous position of
advocates and expert witnesses led the majority to draw incorrect conclusions
from the removal of immunity for advocates. For example, ‘The danger of
undesirable multiplicity of proceedings has been belied by the practical
experience of the removal of immunity for barristers.’ 85 That’s
not a safe conclusion. The inhibition against a disgruntled litigant suing his
lawyer (a man quite at home in the law) is entirely different in force and
nature from when it is an expert who is the potential target.
Expert and advocate also have different
duties. As Lord Hope says, ‘The duties that the advocate owes to the court
are not as far reaching as the overriding duty to the court that rests on the
expert.’ 162 The advocate is paid to be a partisan player who has
to put as strong a case as he can for his client. The expert witness is most
definitely not that!
In short, a legally trained advocate faced
with the removal of immunity has always been much less likely to leave legal
practice, or be put off by the threat of being sued, than will be, say, a
surveyor or a paediatrician to abandon forensic work.
We shall have to wait and see if this
‘experimental’ decision is as benign on the supply of expert witnesses as their
lordships suppose. But the supply issue is not the only concern.
Professional class of expert witness
Another unfortunate consequence of this
decision lies in the impetus it gives to the further development of a
professional class of expert witness. With a few notable exceptions, such as
forensic science and forensic accountancy, the vast majority of expert
witnesses come to court from a busy professional practice. By restricting the
scope for an expert to offer just occasional assistance to the court, the
decision will concentrate instructions upon those experts who have made a
commercial choice to build a forensic practice. This is a double-edged sword.
Whilst the greater understanding of their role and duties should ensure the
‘professional’ expert witness will create fewer procedural problems, by
excluding the occasional expert witness the freshness and challenge to dogma
that comes with diversity is lost.
The majority set the issue before them in
the context of what to do with a negligent expert witness. In my opinion, this
is a myopic view of witness immunity. In putting a single expert witness centre
stage, it strongly encourages the creation of a remedy for a wrong done. But
witness immunity has never been about protecting the negligent but about
protecting the public. In focusing so intently on what to do about the rare
example of an expert witness who has been negligent, the Supreme Court has
handed down a decision that threatens the very foundation of broader witness
There have always been exceptions to the
immunity rule: perjury and contempt have a long lineage; wasted costs orders
and professional disciplinary actions are recent additions. As Lady Hale
pointed out, these exceptions are there to oblige the witness to perform his duty
to the court. But the Supreme Court decision is a radical departure from these
existing exceptions – it has been made to protect the interests of the client. To
do this on no ‘secure principled basis’ 173 is all the more disturbing.
Decidedly Disturbing Decision
The decision is disturbing for the lack of
challenge from the majority of the views expressed by the minority, and for
having the President and his Deputy split over the issue. But the way in which
the majority arrived at its decision is the most troubling aspect of all.
As Lord Hope puts it, this is a decision
that lacks ‘a secure principled basis for removing the immunity from expert
witnesses’. 173 So what has led the court to behave in this way?
One element may be the rather anachronistic view of expert witness practice
revealed by the President of the Supreme Court, and another may be the
conflation of duties.
Anachronistic view of expert practice
Lord Phillips’ judgment is notable for his
pre-Woolf characterisation of the conduct of expert witnesses. For example, when
he says ‘… an expert’s initial advice is likely to be for the benefit of his
client alone’ 56, he is not describing an expert witness, but an
expert advisor (who has never had the protection of witness immunity). No
expert witness instructed under CPR 35 could ever write a report that was
‘for the benefit of his client alone’. It feels as if Lord Phillips
thinks the world of the hired gun is alive and well 10 years after Lord
Woolf rode them out of town. Does a decade or more in the rarefied air at the
very top of the judicial ladder put one out of touch with the reality on the
Conflation of duties
Much is made in the Supreme Court judgment
of the duty an expert witness owes the court, the duty he owes those who
instruct him and how these are incapable of being in conflict. Surely the fact that
the CPR places an ‘overriding’ duty on the expert witness implies that on
occasion these duties will conflict, and the duty to the client is therefore
Lord Phillips says ‘It is paradoxical to
postulate that in order to persuade an expert to perform the duty that he has
undertaken to his client it is necessary to give him immunity from liability
for breach of that duty.’ But it is the conflation of the expert’s duty to
the court with his duty to the solicitor’s client that creates the paradox. By
recognising that these duties can conflict, then the value of the immunity is
Lord Hope is firm in his opinion that there
is ‘an obvious conflict between the duties that the expert owes to his
client and those that, in the public interest, he owes to the court.’ 156
This is because ‘when it comes to the content of that evidence his
overriding duty is to the court, not to the party for whom he appears. His duty
is to give his own unbiased opinion on matters within his expertise.’
Naturally enough, if you convince yourself
that an expert witness is incapable of being presented with a situation in
which his duty to the court can conflict with his duty to others, then you will
see little benefit in an immunity that facilitates his dealing with that
situation in a frank and fearless manner.
But, regardless of how the decision was
made, what its consequences may be and whether it is a correct decision, a
number of issues should now be written at the top of an expert witness’s list
of things to contemplate. These include the need to get comprehensive professional indemnity
insurance in place, to recognise the need for caution in giving initial opinions and to think carefully about acting as an SJE.
What’s an expert to do?
Professional indemnity insurance
First, and most importantly, expert witnesses
should obtain appropriate professional indemnity insurance, or check with their
existing professional indemnity insurer to see if it can provide cover that extends
to forensic work. There are already some schemes being targeted specifically at
expert witnesses, and more will be coming along soon.
However, one thing of which to be aware, is
the fact that a court decision sets out what the relevant law is and was.
So experts should check that their professional indemnity insurer will cover
this retrospective risk.
Limiting liability by contract
Lord Collins said that uninsured expert
witnesses could ‘limit their liability by contract.’ 81 The
notion that an expert witness can successfully limit liability through contract
is an odd one for a Supreme Court judge to suggest. Court reports are littered
with examples of failed attempts to achieve such limitation. Experts can by all
means try it, especially, perhaps, if there is a lack of willing experts in the
field (the family court springs to mind), but it would be unwise to rely on it in
the absence of professional indemnity insurance.
Immunity made it easier for an expert to
resile from an earlier held position. Without the protection of immunity,
expert witnesses may well become more circumspect in their opinions.
Expert witnesses should ensure that they
give accurate opinions at all stages of proceedings, and that their earlier
opinions are consistent with their later ones. So in this respect the impact of
the removal of immunity should be for the good. But expert witnesses will need
to be strong in their determination to give only those opinions that are based absolutely
on the evidence they have been asked to consider. If a change of opinion is
justified by a change in the evidence, there will be precious little for anyone
to complain about. But if there are any other reasons for changing one’s mind,
the expert will come under far greater scrutiny.
Whither the SJE
According to the decision, the removal of
immunity applies only to claims from those who have instructed the expert
witness. So, what of the Single Joint Expert (SJE)? The notion that this role
opens an SJE to suit from all parties may cause a moment’s reflection in future!
And the position of the court-appointed expert witness is far from clear.
However, because this type of appointment is rare, it is of little practical
Having worked with the Law
Commission on their careful deliberations on the admissibility of expert
evidence in criminal proceedings, we are perhaps predisposed to see value in that
body’s approach to tackling difficult questions. If this unprincipled decision
from the Supreme Court does, in practice, result in a serious chilling effect
on the availability of expert witnesses, we may end up in another decade with
the Law Commission looking at how to change the law to encourage a ready supply
of expert witnesses back into court. How much better if we had instead asked
the Law Commission today how best to provide a remedy for the rare wrong
perpetrated by a negligent expert witness.